Citation Nr: 1019463
Decision Date: 05/26/10 Archive Date: 06/09/10
DOCKET NO. 08-14 144 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for a cervical
disability, claimed as secondary to service connected
residuals of a fracture of the left clavicle.
2. Entitlement to a rating in excess of 20 percent for
residuals of a fracture of the left clavicle.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. Punia, Law Clerk
INTRODUCTION
The Veteran had active service from January 1966 until
December 1967.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an April 2007 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
San Diego, California, which denied the benefits sought on
appeal.
In a February 2009 rating decision, the Veteran was awarded
service connection for bilateral hearing loss and tinnitus.
As such, the claim for service connection for bilateral
hearing loss is no longer on appeal.
The Veteran had a decision review office (DRO) hearing in
July 2008. A transcript of that proceeding is associated
with the claims folder.
The issue of entitlement to service connection for cervical
disability, to include as secondary to residuals of the left
clavicle fracture, is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the Veteran's appeal has been obtained.
2. The Veteran is right-hand dominant.
3. The evidence indicates the Veteran experienced left
shoulder pain at 90 degrees forward flexion, 80 degrees
abduction, 60 degrees external rotation and 90 degrees
internal rotation; range of motion is limited an additional
10 degrees after repetitive use with pain, fatigue, weakness,
lack of endurance and incoordination.
4. There is no evidence that the Veteran has an impairment of
the humerus.
CONCLUSION OF LAW
Criteria for a 30 percent rating for residuals of a left
clavicle fracture have been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71,
4.71a, Diagnostic Codes 5003, 5010, 5024, 5201 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined. The VCAA provides that VA shall apprise a claimant
of the evidence necessary to substantiate his claim for
benefits and that VA shall make reasonable efforts to assist
a claimant in obtaining evidence unless no reasonable
possibility exists that such assistance will aid in
substantiating the claim.
In a letter dated in December 2006, VA notified the Veteran
of the information and evidence needed to substantiate and
complete his claim for a rating in excess of 20 percent for
residuals of a fracture of the left clavicle, including what
part of that evidence he was to provide and what part VA
would attempt to obtain for him. See 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). Accordingly, the Board finds that VA met
its duty to notify the Veteran of his rights and
responsibilities under the VCAA.
The Board also finds that VA has complied with the VCAA's
duty to assist by aiding the Veteran in obtaining evidence,
affording him physical examinations, obtaining medical
opinions as to the etiology and severity of disabilities, and
by affording him the opportunity to give testimony before the
decision review officer in San Diego, California. It appears
that all known and available records relevant to the issue
here on appeal have been obtained and are associated with the
Veteran's claims file, and the Veteran does not appear to
contend otherwise. Additionally, the examinations provided
and medical opinions obtained are adequate for rating
purposes as the examinations were performed based upon a
review of the pertinent medical evidence and complaints of
the Veteran and the opinions provided include well-reasoned
rationale. Thus, the Board finds that VA has done everything
reasonably possible to notify and to assist the Veteran and
that no further action is necessary to meet the requirements
of the VCAA. As such, the Board will now turn to the merits
of the Veteran's claim.
The Veteran is claiming entitlement to an increased
evaluation for residuals of a left clavicle fracture.
Service connection was initially awarded at 10 percent in a
July 1987 rating decision. In January 1998, the Veteran
submitted a claim for an increase for this disability and was
granted an increase to 20 percent. In November 2006, he
filed another claim for increase, which is the subject of the
current appeal.
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. Where
entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be
given to a longitudinal picture of the Veteran's disability
to determine if the assignment of separate ratings for
separate periods of time, a practice known as "staged"
ratings, is warranted. See Hart v. Mansfield, 21. Vet. App.
505 (2007).
Throughout the rating period on appeal, the Veteran's
residuals of a fracture of the left clavicle have been
evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. It
is noted that the left arm represents the Veteran's non-
dominant extremity and, therefore, only the diagnostic
criteria pertinent to the non-dominant arm will be discussed
in the analysis that follows.
Under Diagnostic Code 5201, for a non-dominant arm, a 20
percent evaluation is provided for limitation of motion of
the arm at shoulder level; a 30 percent evaluation may be
assigned for limitation of motion midway between the side and
shoulder level; and a 40 percent evaluation may be assigned
for limitation of major arm motion to 25 degrees from the
side. Full range of motion of the shoulder is 0 to 180
degrees of abduction and forward elevation (flexion) and 0 to
90 degrees of internal and external rotation. 38 C.F.R. §
4.71, Plate I.
Functional loss also must be considered in addition to the
criteria set forth above. See 38 C.F.R. §§ 4.40, 4.45 and
4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-06
(1995). In particular, if the disability at issue is of a
musculoskeletal nature or origin, then VA may, in addition to
applying the regular schedular criteria, consider granting a
higher rating for functional impairment caused by pain,
weakness, excess fatigability, or incoordination, assuming
these factors are not already contemplated by the governing
rating criteria. Claimed functional loss must be supported
by adequate pathology and evidenced by visible behavior of
the Veteran undertaking the motion. See DeLuca v. Brown,
supra.
A December 2006 VA examination report indicates that the
Veteran has pain in the left shoulder and clavicle
intermittently throughout the day, especially during cold
weather. The pain travels down the lower back and both hips,
the Veteran reported that the left hip pain is worse than the
right and the severity of pain is typically 7 out of 10, on a
scale of 1 to 10 with 10 being the most severe. The Veteran
stated that the pain is brought on by physical activity and
is relieved by rest. Moreover, the Veteran reported weakness
in the left shoulder and inability to lift any weight or lift
his left arm overhead.
Physical examination of the Veteran revealed that he was
right hand dominant and the shoulders showed no sign of
ankylosis. The examiner noted that bilaterally forward
flexion elicited pain at 90 degrees, abduction elicited pain
at 80 degrees, external rotation elicited pain at 60 degrees,
and internal rotation was to 90 degrees with pain elicited at
90 degrees. The examiner further noted there was no fatigue,
weakness, lack of endurance or incoordination, however, after
repetitive use, the Veteran had an additional 10 degree
limitation of motion with pain, fatigue, weakness, lack of
endurance and incoordination in both shoulders. The examiner
noted that the Veteran's pain had a major impact on his
function.
It is important to note at this juncture that it is the
defined and consistently applied policy of VA to administer
the law under a broad interpretation, consistent, however,
with the facts shown in every case. When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt is
meant one which exists because of an approximate balance of
positive and negative evidence which does not satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. See 38 C.F.R. § 4.3.
In considering the evidence outlined above, and the Veteran's
credible testimony of an inability to lift his arm over his
head, the Board will resolve all doubt in favor of the
Veteran with respect to whether there is an additional loss
of motion. Thus, the Board finds the criteria for 30 percent
rating for residuals of a left clavicle fracture under
Diagnostic Code 5201 are met as the Veteran's range of motion
after repetitive use is limited to 80 degrees of forward
flexion, 70 degrees of abduction, 50 degrees of external
rotation and 80 degrees of internal rotation. This indicates
that the Veteran's range of motion is limited to midway
between the side and shoulder level, meeting the criteria for
a rating of 30 percent. However, the Veteran does not meet
the criteria for an evaluation in excess of that amount,
since there is no evidence indicating that his arm motion is
limited to 25 degrees from the side. The 30 percent rating
is appropriate as it accounts for the Veteran's documented
pain, fatigue, weakness, lack of endurance and
incoordination. Thus, the Board grants an increase in rating
to 30 percent, and no higher, for residuals of a left
clavicle fracture.
The Board has also considered whether any other diagnostic
codes may provide for a higher rating. In this regard,
Diagnostic Code 5202, concerning other impairment of the
humerus is not for application because there is no evidence
that the Veteran suffers from any such impairment. Moreover,
Diagnostic Code 5203, addressing impairment of the clavicle
or scapula, is potentially relevant, but this code section
affords a maximum benefit of 20 percent. Therefore, as the
Veteran is being awarded a 30 percent evaluation throughout
the rating period on appeal, Diagnostic Code 5203 cannot
serve as a basis for an increased rating. There are no other
relevant codes for consideration and the Board is satisfied
that 30 percent is the most favorable rating available for
assignment. There is no need for staged ratings as the
Veteran's disability has displayed the same level of severity
throughout the period in question.
The VA schedule of ratings will apply unless there are
exceptional or unusual factors that would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides
that, in exceptional circumstances, where the schedular
evaluations are found to be inadequate, the Veteran may be
awarded a rating higher than that encompassed by the
schedular criteria. According to the regulation, an
extraschedular disability rating is warranted upon a finding
that "the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards."
The United States Court of Appeals for Veterans Claims
(Court) clarified the analytical steps necessary to determine
whether referral for extraschedular consideration is
warranted. See Thun v. Peake, 22 Vet. App. 111 (2008).
First, it must be determined whether the evidence presents
such an exceptional disability picture that the available
schedular evaluations for that service-connected disability
are inadequate. Second, if the schedular evaluation does not
contemplate the Veteran's level of disability and
symptomatology and is found inadequate, VA must determine
whether the Veteran's exceptional disability picture exhibits
other related factors such as those provided by the
regulation as "governing norms." Third, if the rating
schedule is inadequate to evaluate a Veteran's disability
picture and that picture has attendant thereto related
factors such as marked interference with employment or
frequent periods of hospitalization, then the case must be
referred to the Under Secretary for Benefits or the Director
of the Compensation and Pension Service to determine whether,
to accord justice, the Veteran's disability picture requires
the assignment of an extraschedular rating.
The Veteran has asserted that he is unable to work overhead
or do heavy lifting, but does not claim to be unemployable
because of his service-connected left clavicle disability.
The Veteran has not identified any specific factors which may
be considered to be exceptional or unusual in light of VA's
schedule of ratings, and the Board has been similarly
unsuccessful. The Veteran has not required frequent periods
of hospitalization for his left clavicle disability.
Treatment records are void of any finding of exceptional
limitation due to the residuals of a left clavicle fracture
disability beyond that contemplated by the schedule of
ratings.
The Board does not doubt that limitation caused by left
shoulder pain has an adverse impact on employability;
however, loss of industrial capacity is the principal factor
in assigning schedular disability ratings. See 38 C.F.R. §§
3.321(a) and 4.1. 38 C.F.R. Section 4.1 specifically states:
"[g]enerally, the degrees of disability specified are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability." See also
Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose
v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the
disability rating itself is recognition that industrial
capabilities are impaired]. Thus, because the rating
criteria discussed above specifically encompasses the
complaints put forward by the Veteran and the objective
medical findings of record, the Board does not find that they
are inadequate for rating purposes and referral for an extra-
schedular evaluation is not warranted.
ORDER
A 30 percent rating for residuals of a fracture of the left
clavicle is granted, subject to the laws and regulations
governing the award of monetary benefits.
REMAND
A review of the record discloses a need for further
development prior to final appellate review of the claim of
entitlement to service connection for a cervical disability,
claimed as secondary to the Veteran's left shoulder
disability. Specifically, as indicated in his November 2006
claim, the Veteran contends that his current back condition
is causally related to injuries sustained in service or
secondary to his service-connected residuals of left clavicle
injury. In this regard, the STRs do show treatment for his
left clavicle in active service. Specifically, the Veteran
contends he injured his back when he fell during a football
game in service. A January 1967 STR confirmed such an
incident. There were no additional complaints or findings
through the time of the Veteran's separation from active
service. The separation examination conducted in October
1967 showed normal findings, and no disability of the back
was diagnosed at that time.
Following separation from active service, there is no showing
of complaints or treatment of the back until August 1992. At
that time, the Veteran complained of back pain, poor motor
strength and incoordination. In April 2005, the Veteran
underwent an anterior cervical diskectomy and fusion at C-6
and C-7 with partial corpectomy and neuroforaminotomies. At
his July 2008 DRO hearing, the Veteran contended that he had
been suffering back pain since his fall in January 1967. The
Veteran stated that every time he discussed it with his
doctors they would "brush it off" and indicated that he
never received proper examination or treatment for his back
problems. Moreover, in a December 2006 VA examination of
residuals of the left clavicle fracture the Veteran reported
that the pain from his left shoulder travels down the lower
back and both hips. However, this examination did not
discuss etiology or nexus of the cervical problems.
VA has a duty to provide a medical examination and opinion
when the evidence reflects an in-service event, a current
disability and an indication that the current disability may
be associated with his service. See McLendon v. Nicholson,
20 Vet. App. 79 (2006). Once VA undertakes the effort to
provide an examination, it must provide an adequate one. See
Barr v. Nicholson, 21 Vet. App. 303 (2007). The medical
examination provided to the Veteran is inadequate for rating
purposes because it fails to discuss the contended cervical
disability. Therefore, the claim must be remanded for
additional development of the medical record pursuant to 38
C.F.R. § 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an
examination to determine the existence
and etiology of any spine disability,
including as secondary to residuals of an
in-service fracture of the left clavicle.
The claims file must be made available
for review, and the examination report
should reflect that such review occurred.
Upon a review of the record and
examination of the Veteran, the examiner
should render all appropriate diagnoses
and for each one state the following:
Is it at least likely as not (50 percent
probability or greater) that the Veteran
has a disability that is a result of the
documented in-service injury or developed
as secondary to that injury and/or the
long-standing residuals of the left
clavicle fracture.
The term "as likely as not" does not
mean merely within the realm of medical
possibility, but rather that the weight
of medical evidence both for and against
a conclusion is so evenly divided that it
is medically sound to find in favor of
causation or aggravation as it is to find
against it.
A rationale for any opinion advanced must
be provided. If an opinion cannot be
formed without resorting to mere
speculation, the examiner should so state
and provide a reason for such conclusion.
2. After completing the requested
development, again review the record and
readjudicate the claim. If the benefit
sought on appeal remains denied, the
Veteran and his representative should be
furnished a supplemental statement of the
case (SSOC). An appropriate time should
be given for them to respond thereto.
Thereafter, the case should be returned
to the Board for further appellate
consideration, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Kristi Barlow
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs